September 26, 2005

In law school, I took a yearlong administrative law course from Stephen Breyer.... At the end of every class, we made a point of checking how much chalk there was on his suit, since he tended to back into the blackboard in his excitement over topics like "agency nonacquiescence."

That's especially funny to a lawprof, because most of us spend our classroom hours getting far more excited about the topic under discussion than it would make any sense for a normal young person to feel.

Anyway, Justice Breyer has a new book, "Active Liberty: Interpreting Our Democratic Constitution." I don't know about you, but I always balk at reading a book written by a Supreme Court Justice. They already hog such a large proportion of my reading time with their grossly bloated opinions. And now they want to claim even more of my time? (Though I'd love to read their blogs!)

Well, Breyer is writing to push back at Justice Scalia, who's successfully used book-writing to raise his profile as a Justice with a theory of interpretation, "original meaning." (Though he hasn't raised it high enough for the NYT to get it right. They call it "the 'original intent' of the founders," which is what Scalia takes pains to distinguish it from.)

"Active liberty," according to Justice Breyer, is the ability of ordinary citizens to play a role in government decisions. As he sees it, the Constitution's drafters were most interested in creating a government that remained under the control of, as the first three words of the document say, "We the People."

Shouldn't that be: under the control of Us the People? (I'm sorry. That's my pet peeve about constitutional pontificators: throwing "We the People" around without noticing when you're using it as the object and not the subject of your sentence.)

Originalists like Justice Scalia see the Constitution as a set of rights and rules that were frozen in time when they were written. Justice Breyer argues that the better What-would-the-founders-do? approach is to interpret the Constitution in ways that promote its essential purpose: helping citizens get the knowledge and power they need to influence government policies on important issues.

Cohen informs us that Breyer demonstrates that his "active liberty" interpretive methodology supports various postions Breyer has taken on the Court: affirmative action doesn't violate Equal Protection; campaign finance regulation doesn't violate Free Speech. It's useful for a judge to fit his opinions into a framework. I'm glad there's a book from Breyer to set alongside Scalia's book. But I've read the opinions, and I expect the Justices to be able to make the argument that all that they've done is coherent.

If I want to spend more time thinking about how Breyer (or any other Supreme Court Justice) interprets the Constitution, it will be to discover for myself the ways in which the diverse opinions don't fit together.

IN THE COMMENTS: The question is raised: Which Supreme Court Justice would make the best blogger? I think it would depend on whether they were blogging openly in their own name, like Judge Posner, or running with an "Anonymous Supreme Court Justice" concept. It's pretty clear Scalia would be the best at blogging in his own name, but how could we know who has an inner blogger persona waiting to break free? I'd guess Clarence Thomas. Now, I realize the "Anonymous Supreme Court Justice" wouldn't work well enough to provide cover. What I suggest is that the Justice blog in the guise of an anonymous Supreme Court law clerk. It would be similar to the way Justice Stewart flew under the radar as a source for "The Brethren."

17 comments:

You raise an interesting thought here, Ann: the notion of our justices blogging.

While I think it would be inappropriate for them to take up this form of communications, I wonder which of the justices would be the most interesting bloggers? Especially, if they were to give full vent to their personalities.

My guess is that Scalia would be the most provocative, although Ginsberg would give him a run for his money, as they say. Each have very strong ideas. In Scalia's case, he often expresses those ideas in sharp words and images.

On the theory that "still waters run deep," Souter might produce some interesting writing.

My guess is that Stevens and O'Connor (who is still on the Court, after all) might have the most engaging and enjoyable stories to tell. They both seem like raconteurs.

Breyer is an elegant writer, and I look forward to reading his book. I do not expect to be convinced. Breyer's vision of judicial paternalism does not appeal to me. George F. Will has already read it, and dissents here.

With regard to the continual use of "original intent" to refer to originalism, I smell conspiracy. As I mentioned at Prawfsblawg when Akhil Amar recently committed the same sin (see Slate), I think it's used deliberately by folks like Jack Balkin "as a cunning subterfuge to make arguments that are valid against original intent stick to other forms of originalism where they would otherwise have less (or no) traction." In a neat bit of circular linking, I actually talked aboout this previously at Althouse here.

My own view is that Breyer and Scalia should be given their own talking points show if and when they retire (call it "counterpoint" or something equally bland), so they can routinely spar. You put the two of them together in a room and you get compelling television, as the two recent forays into CSPAN demonstrate.

On the other hand, I would advance the argument that Our Hero should stay on the Court until the bitter end.

Incidentally, Cohen not only repeats the original intent conspiracy, he repeats the other thing Most Likely To Piss Me Off (tm):

In reality, Justice Scalia has been one of the justices most willing to strike down Congressional statutes, while Justice Breyer has been the least willing.

This is the theory that has previously been floated by the NY Times (see Gewirtz & Golder, So Who Are the Activists?) and Thomas Keck (see The Most Activist Supreme Court in History) that the conservatives are the activists on the court "because they strike down more statutes than the liberals". Even assuming that it is, as a matter of mathematics, an accurate statement that conservative judges strike down more statutes than liberal judges, this is so self-evidently a meaningless and absurd definition of judicial activism that it beggars belief that anyone is willing to attatch their name to an article which states it.

As explained here (discussing Dred Scott), "[Judicial] activism...can be undertaken by both action and inaction; an activist decision is one which either upholds a law which is unconstitutional, or strikes down one which is not." Accord Less nebulous than you'd think, part Ia at pp.2-4 ("The act itself is inherently neutral; it is a tool, simply part of the judicial power. It cannot be judicial activism to strike down a statute that actually is unconstitutional"); since the earliest days of the Republic, it has been the responsibility of the judiciary to measure a law against the constitution, and to strike down those which cannot survive such scrutiny.

This attempt to create a liberal counterpoint out of thin air is, at best, exceedingly tenuous, and at worst, a flat-out rejection of (or, more charitably, ignorance of) the constitutional role of the judiciary.

Simon, whether or not striking down statutes is an appropriate measure of activism, all the quoted material alleges is that Scalia votes to strike down more statutes than Breyer. If that's true, what's objectionable about saying it?

Unrelated: Has Scalia backed away from his half-dismissal of originalism? I'd always thought of him as a textualist, and at best (and I'm trying to quote his own words from memory) a "faint-hearted originalist."

I've heard this argument several times now, and it smacks of revisionist history (theory rather). I seem, from my legal theory days back in school, to remember that the term "activist" was to apply to those judges (like the Warren Court) that stepped in to intrude on areas thought to be within the province of legislative and executive powers. They created "rights" some thought suspicious, and overturned precedent some thought established. The thinking was that judges were inappropriately political in overturning legislative enactments and executive enforcments that they didn't agree with. Judges were supposed to show deference to the political branches, and "activist" judges ignored this by instituting their own preferences. This would conform to the actual definition of the word "activist", i.e., one who acts.

We're told now that "active" includes the failure to act. In other words, it includes mere acceptance of the actions of others (the legislative and executive branches). Not only is this counter-intuitive, but it renders the the term meaningless. According to Simon, whether you are active or not depends on whether you make the right decisions (I assume Simon decides when those decisions are right).

All this is not intended as an argument that today's activists are wrong, or that yesteryears activists were right. I'm merely pointing out that your argument is explaining away one of the theoretical underpinnings of the conservative legal movement.

Jack, read the context of the quote. It may well be true that Scalia has voted more often to strike down statutes than Breyer, I have no idea whether that's true or not, as an issue of pure numbers. But in the context of the article, the statement is being used as evidence that conservative Judges are at least as activist as liberals, if not more so. The mere fact that it is being used in this way rests on the predicate that striking down a law is activist. Which does rather beg the question of what a Judge is supposed to do when confronted with a law which violates the constitution? What is a Judge, what is "the judicial power of the united states", to do when confronted with a case in which EITHER the constitution OR a statute must prevail? Since the earliest days of independence - before Marbury, before the cosntitution even existed - the answer has been that the constitution prevails. That isn't activism, that's the job of a judge.

Scalia has never rejected originalism; the quote of his being "faint-hearted" is from Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862-864 ("I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging. But then I cannot imagine such a case's arising either.") I think what he's saying is that, if a result is absurd or terrible, he may shy away from it. This is why Justice Thomas is frequently lauded as being far braver than Scalia, insofar as he is far more apt to go boldly wherever originalism demands he go (Mark Tushnet specifically makes this point in A Court Divided), even if the consequences are diabolical. Not always, of course, but sometimes.

Simon, you are now parroting arguments used by liberals in defense of striking down laws they find obnoxious. The "activist" label was a political vehicle that has outlived its usefulness. You should be happy that the debate has moved to defending conservative jurisprudence, rather than having to denounce strings of liberal rulings.

Rick,The definition of "activist" is NOT "one who undertakes an action". The definition of "activism" is "taking direct action to achieve a polical or social end". See Websters New World Dictionary; accord dictionary.com ("The use of direct, often confrontational action, such as a demonstration or strike, in opposition to or support of a cause"); Meriam-Webster Online ("a doctrine or practice that emphasizes direct vigorous action especially in support of or opposition to one side of a controversial issue").

One may take any number of actions which are necessary and proper without becoming an activist. Rather, one becomes a judicial activist by using one's office to advance a cause or social agenda. If you advance that cause by permitting to stand a law or rule which is unconstitutional, you are being an activist, even if it involves no overt action; if you advance that cause by striking down a law or rule which is not unconstitutional, you are also being an activist. Roewas an activist decision, not because it struck down laws, but because it stood in opposition to the Constitution. Brown was not an activist decision - although I would have concurred only in the Judgement in that case; see Bork, The Tempting of America (1990 ed.) at pp.74-83; cf. Rutan V. Republican Party, 497 U.S. 62, 96 n.1 (Scalia, J., dissenting) - even though it struck down any number of laws and long-established practises, because it was a result required by the Constitution.

You are not being told that one may be "active" by inaction. You are being told that one may be activist by failing to take action when action is required of you. Your confusion stems from a false conflation of "activism" and "activity". If these two words meant the same thing, your point would be valid. They don't, and ergo, it isn't.

I'm not much interested in advancing or defending "the conservative legal movement" - I'm interested in returning to the original understanding of the constitution, whether the results of that anger conservatives or liberals, period. Originalism, as it is used by FauxNews and its like may or may not be the most recent buzzword/euphemism for "conservative judges", but it certainly is not when I use it. Conservatives may be fairweather friends to the original understanding, but I am not. If I were a Justice, I would strike down unconstituional laws passed by a Republican Congress and signed by a republican President as happily as I would strike down unconstitional laws passed by a Democratic Congress and signed by a democratic President. Constitution comes before party line.

"Active liberty," according to Justice Breyer, is the ability of ordinary citizens to play a role in government decisions. As he sees it, the Constitution's drafters were most interested in creating a government that remained under the control of, as the first three words of the document say, "We the People."

So in what way does the striking down of the Texas sodomy law, for example, help insure that the government remains in control of "[Us] the people"? In what way does the Kelo decision insure that the government remains in control of "[Us] the people"?

The only decision in recent memory that I can think of that is even related to insuring that the "people" have control is, well, Bush v. Gore. (No matter which side you take on that decision.)

If I were a Justice, I would strike down unconstituional laws passed by a Republican Congress and signed by a republican President as happily as I would strike down unconstitional laws passed by a Democratic Congress and signed by a democratic President. Constitution comes before party line.

I would love for their insights, thought processes and random musings be open for all to see while they hold their seats rather than after they retire or die, but I fear that the current and future political atmosphere surrounding the Supreme Court makes that sort of openness untenable.

I think LeRoy is right. I mean, you have only to look to the gust book of cult of scalia - where virtually every other comment seems to be obscenity-laden nonsense - to see the kind of reaction inspired. This is why there will never, ever be a comment page on Ninoville.

"Active liberty," according to Justice Breyer, is the ability of ordinary citizens to play a role in government decisions.

Gosh, you mean, like voting?

Ah, no, clearly he doesn't mean that, because if he did he wouldn't favor striking down laws (passed by you elected representatives) just because those laws offended his personal political beliefs.

As an "ordinary citizen", I've got a lot better chance of "playing a role" in changing a legislator's decisions, than I have in changing a Supreme Court Justice's decisions. So if he actually cared about "ordinary citizens'" power, he'd want decisions made by the Legislative and Executive Branches, not by "Judges" deciding which way the "Living Constitution" will grow today.

That's especially funny to a lawprof, because most of us spend our classroom hours getting far more excited about the topic under discussion than it would make any sense for a normal young person to feel.

IN THE COMMENTS: The question is raised: Which Supreme Court Justice would make the best blogger?

Scalia! Because he would be bitchy.

Also, he's great friends with Ruth Bader Ginzburg, I heard, and that shows an Althousian sense of balance, decency and fair play, despite what Charles Giacometti says about her in the piece of paper he slipped under my desk.